10 U.S. Code § 2307 - Contract financing

(1)make advance, partial, progress, or other payments under contracts for property or services made by the agency; and

(2)insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments.

(b) Performance-Based Payments.— Whenever practicable, payments under subsection (a) shall be made on any of the following bases:

(1)Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls.

(2)Accomplishment of events defined in the program management plan.

(3)Other quantifiable measures of results.

(c) Payment Amount.— Payments made under subsection (a) may not exceed the unpaid contract price.

(d) Security for Advance Payments.— Advance payments made under subsection (a) may be made only if the contractor gives adequate security and after a determination by the head of the agency that to do so would be in the public interest. Such security may be in the form of a lien in favor of the United States on the property contracted for, on the balance in an account in which such payments are deposited, and on such of the property acquired for performance of the contract as the parties may agree. This lien is paramount to any other liens and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the United States.

(e) Conditions for Progress Payments.—

(1)The Secretary of Defense shall ensure that any payment for work in progress (including materials, labor, and other items) under a defense contract that provides for such payments is commensurate with the work accomplished that meets standards established under the contract. The contractor shall provide such information and evidence as the Secretary of Defense determines necessary to permit the Secretary to carry out the preceding sentence.

(2)The Secretary shall ensure that progress payments referred to in paragraph (1) are not made for more than 80 percent of the work accomplished under a defense contract so long as the Secretary has not made the contractual terms, specifications, and price definite.

(3)This subsection applies to any contract in an amount greater than $25,000.

(f) Conditions for Payments for Commercial Items.—

(1)Payments under subsection (a) for commercial items may be made under such terms and conditions as the head of the agency determines are appropriate or customary in the commercial marketplace and are in the best interests of the United States. The head of the agency shall obtain adequate security for such payments. If the security is in the form of a lien in favor of the United States, such lien is paramount to all other liens and is effective immediately upon the first payment, without filing, notice, or other action by the United States.

(2)Advance payments made under subsection (a) for commercial items may include payments, in a total amount of not more than 15 percent of the contract price, in advance of any performance of work under the contract.

(3)The conditions of subsections (d) and (e) need not be applied if they would be inconsistent, as determined by the head of the agency, with commercial terms and conditions pursuant to paragraphs (1) and (2).

(g) Certain Navy Contracts.—

(1)The Secretary of the Navy shall provide that the rate for progress payments on any contract awarded by the Secretary for repair, maintenance, or overhaul of a naval vessel shall be not less than—

(A)95 percent, in the case of a firm considered to be a small business; and

(B)90 percent, in the case of any other firm.

(2)The Secretary of the Navy may advance to private salvage companies such funds as the Secretary considers necessary to provide for the immediate financing of salvage operations. Advances under this paragraph shall be made on terms that the Secretary considers adequate for the protection of the United States.

(3)The Secretary of the Navy shall provide, in each contract for construction or conversion of a naval vessel, that, when partial, progress, or other payments are made under such contract, the United States is secured by a lien upon work in progress and on property acquired for performance of the contract on account of all payments so made. The lien is paramount to all other liens.

(h) Vesting of Title in the United States.— If a contract paid by a method authorized under subsection (a)(1) provides for title to property to vest in the United States, the title to the property shall vest in accordance with the terms of the contract, regardless of any security interest in the property that is asserted before or after the contract is entered into.

(i) Action in Case of Fraud.—

(1)In any case in which the remedy coordination official of an agency finds that there is substantial evidence that the request of a contractor for advance, partial, or progress payment under a contract awarded by that agency is based on fraud, the remedy coordination official shall recommend that the head of the agency reduce or suspend further payments to such contractor.

(2)The head of an agency receiving a recommendation under paragraph (1) in the case of a contractor’s request for payment under a contract shall determine whether there is substantial evidence that the request is based on fraud. Upon making such a determination, the agency head may reduce or suspend further payments to the contractor under such contract.

(3)The extent of any reduction or suspension of payments by the head of an agency under paragraph (2) on the basis of fraud shall be reasonably commensurate with the anticipated loss to the United States resulting from the fraud.

(4)A written justification for each decision of the head of an agency whether to reduce or suspend payments under paragraph (2) and for each recommendation received by such agency head in connection with such decision shall be prepared and be retained in the files of such agency.

(5)The head of an agency shall prescribe procedures to ensure that, before such agency head decides to reduce or suspend payments in the case of a contractor under paragraph (2), the contractor is afforded notice of the proposed reduction or suspension and an opportunity to submit matters to the head of the agency in response to such proposed reduction or suspension.

(6)Not later than 180 days after the date on which the head of an agency reduces or suspends payments to a contractor under paragraph (2), the remedy coordination official of such agency shall—

(A)review the determination of fraud on which the reduction or suspension is based; and

(B)transmit a recommendation to the head of such agency whether the suspension or reduction should continue.

(7)The head of an agency shall prepare for each year a report containing the recommendations made by the remedy coordination official of that agency to reduce or suspend payments under paragraph (2), the actions taken on the recommendations and the reasons for such actions, and an assessment of the effects of such actions on the Federal Government. The Secretary of each military department shall transmit the annual report of such department to the Secretary of Defense. Each such report shall be available to any member of Congress upon request.

(8)This subsection applies to the agencies named in paragraphs (1), (2), (3), (4), and (6) of section
2303(a) of this title.

(9)The head of an agency may not delegate responsibilities under this subsection to any person in a position below level IV of the Executive Schedule.

(10)In this subsection, the term “remedy coordination official”, with respect to an agency, means the person or entity in that agency who coordinates within that agency the administration of criminal, civil, administrative, and contractual remedies resulting from investigations of fraud or corruption related to procurement activities.

In subsection (a), the words “and appropriate” are omitted as surplusage. The words “whether or not the contract previously provided for such payments” are substituted for the words “heretofore or hereafter executed”.

In subsection (b), the words “under subsection (a)” are inserted for clarity. The words “provide for” are substituted for the words “include as security provision for”. The words “United States” are substituted for the word “Government”.

Subsec. (d). Pub. L. 103–355, § 2001(d), inserted before period at end “and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the United States”.

Subsec. (e)(1). Pub. L. 103–355, § 2001(e)(1), substituted “work accomplished that meets standards established under the contract” for “work, which meets standards of quality established under the contract, that has been accomplished”.

Subsec. (e)(3). Pub. L. 103–355, § 2001(e)(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “This subsection does not apply to any contract for an amount not in excess of the amount of the small purchase threshold.”

1991—Subsec. (d)(3). Pub. L. 102–25, § 701(d)(4), substituted “any contract for an amount not in excess of the amount of the small purchase threshold” for “contracts for amounts less than the maximum amount for small purchases specified in section
2304(g)(2) of this title”.

1990—Subsec. (d). Pub. L. 101–510, § 1322(a)(4), redesignatedsubsec. (e) as (d) and struck out former subsec. (d) which read as follows: “Payments under subsection (a) in the case of any contract, other than partial, progress, or other payments specifically provided for in such contract at the time such contract was initially entered into, may not exceed $25,000,000 unless the Committees on Armed Services of the Senate and the House of Representatives have been notified in writing of such proposed payments and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees and neither House of Congress has adopted, within such 60-day period, a resolution disapproving such payments. For purposes of this section, the continuity of a session of Congress is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of such 60-day period.”

Pub. L. 101–510, § 836(b), inserted at end of par. (1) “The contractor shall provide such information and evidence as the Secretary of Defense determines necessary to permit the Secretary to carry out the preceding sentence.”

1958—Pub. L. 85–800authorized advance or other payments under contracts for property or services by agency, authorized insertion in bid solicitations of provision limiting advance or progress payments to small business concerns, restricted payments under subsec. (a) to unpaid contract price, and reworded generally conditions for making advance payments.

Pub. L. 101–510, div. A, title VIII, § 836(c),Nov. 5, 1990, 104 Stat. 1616, as amended by Pub. L. 102–25, title VII, § 701(j)(2)(B),Apr. 6, 1991, 105 Stat. 116, provided that: “The provisions of section
2307 of title
10, United States Code, that are added by the amendments made by subsections (a) and (b) shall apply with respect to contracts entered into on or after May 6, 1991.”

Relationship of 1994 Amendment to Prompt Payment Requirements

Pub. L. 103–355, title II, § 2001(h),Oct. 13, 1994, 108 Stat. 3303, provided that: “The amendments made by this section [amending this section and section
7522 of this title and repealing sections
7312,
7364, and
7521 of this title] are not intended to impair or modify procedures required by the provisions of chapter
39 of title
31, United States Code, and the regulations issued pursuant to such provisions of law (as such procedures are in effect on the date of the enactment of this Act [Oct. 13, 1994]), except that the Government may accept payment terms offered by a contractor offering a commercial item.”

Limitations on Progress Payments

Pub. L. 99–145, title IX, § 916,Nov. 8, 1985, 99 Stat. 688, which required Secretary of Defense to ensure that any progress payment under a defense contract be commensurate with work accomplished at standard of quality in contract, that such payments be limited to 80 percent of work accomplished so long as contract terms are indefinite, that this provision be waived for small purchases, and that this provision apply only to contracts for which solicitations were issued on or after 150 days after Nov. 8, 1985, was repealed and restated in subsec. (e) of this section by Pub. L. 100–370, § 1(f)(1),July 19, 1988, 102 Stat. 846.

Obligations Entered Into Before November 16, 1973

Pub. L. 93–155, title VIII, § 807(e),Nov. 16, 1973, 87 Stat. 616, provided that: “The amendments made by this section [amending this section, section
1431 of Title
50, War and National Defense, and sections
468 and
2092 of Appendix to Title
50] shall not affect the carrying out of any contract, loan, guarantee, commitment, or other obligation entered into prior to the date of enactment of this section [Nov. 16, 1973].”